Lines could be blurred by conflict of interest

Tuesday, September 12, 2017

Martin Callinan and Nóirín O’Sullivan are now civilians, yet both are represented by the same legal team as the Garda force at the Disclosures Tribunal, comments Special Correspondent Michael Clifford.

WHAT now for the “unending cycle of requests, questions, instructions and public hearings” that prompted Nóirín O’Sullivan to retire?

There will be no more awkward appearances for her before the Policing Authority or the Oireachtas Public Accounts Committee.

But one inquiry she is obliged to co-operate with is the Disclosures Tribunal.

Ms O’Sullivan is named in in three separate terms of reference of the tribunal which is examining whether there was a campaign within An Garda Siochána to discredit Sgt Maurice McCabe.

One term concerns whether former Garda press officer Supt David Taylor was “instructed or directed by former commissioner Martin Callinan and/or deputy commissioner Nóirín O’Sullivan to contact the media to brief them negatively against Sergeant Maurice McCabe”.

Another term will look at whether Mr Callinan, Ms O’Sullivan and other senior gardaí used an allegation against Sgt McCabe in a manner intended to “discredit Sergeant McCabe”.

In addition, the tribunal is to investigate “whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the (O’Higgins) Commission on Investigation”.

Ms O’Sullivan is co-operating with the tribunal in dealing with these matters.

However, since midnight last Sunday, her status has changed.

While she was Garda commissioner, she could claim to represent the corporate interests of the force, even though she was named personally in the terms of reference.

Soon after the tribunal was set up, she established a unit in Garda HQ to act as an effective clearing house for material bound for the tribunal.

This unit included retired and serving officers who have been identified as being personally close to her, and, in one instance, former commissioner Martin Callinan. To this extent, it could be argued, Ms O’Sullivan had close control, or at least sight of, all material going to the tribunal.

Some within An Garda Siochána were unhappy with this arrangement. It has been reported that the civilian head of human resources, John Barrett, sought advice on whether the arrangement was legally sound. Others saw it as a possible impediment to anybody in the force who may have been disposed to giving evidence of which Ms O’Sullivan may not have approved.

STILL, she could make an argument that the volume of material required by the Disclosures Tribunal necessitated the establishment of such a unit, and that the personnel in it were selected exclusively on the basis of their professional records.

Now, however, the commissioner’s interests no longer coincide with those of An Garda Siochána. She is now a civilian. Will the unit continue to operate as it has? And, more importantly, to whom will it now report, even on an informal basis?

The issue is complicated by representation at the tribunal. Ms O’Sullivan is represented by the same counsel as Mr Callinan and An Garda Siochána.

The fact that Mr Callinan, now a civilian, was sharing representation with the commissioner — as she then was — and the force as a corporate entity raised a few eyebrows. This effectively gave Mr Callinan access to the levers of power and information within the force, even though he was no longer a member. It also saw his interests, as a civilian, allied to those of the force.

Now the controversy has another layer. Since Sunday, Ms O’Sullivan is also a civilian, yet has access to the upper echelons of the force, and particularly its information.

Is this in the best interests of An Garda Siochána? What, for instance, if a scenario arises that shows either of the former commissioners acted in a manner that might be construed as bringing the force into disrepute? How can the counsel for An Garda Siochána cross-examine his own client?

What if Ms O’Sullivan would like to see material aired at the tribunal which might positively impact on her case but reflect negatively on An Garda Siochána? These matters require consideration.

There is bitter irony in the position of Supt Taylor in this respect.

He is a member of the force. Yet he is not entitled to access to material from Garda HQ, while two civilians do enjoy that access. Who exactly is An Garda Siochána representing?

The blurring of lines, and its capacity to impede the tribunal, was raised by Sergeant McCabe’s counsel Michael McDowell, on the opening day.